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La Guerre, La Verne v Medina, Kern; American Life and General Insurance Company (Trinidad and Tobago) Limited. [2012] TTHC 210 (14 December 2012)

IN THE REPUBLIC OF TRINIDAD AND TOBAGO

CV 2011-00332

IN THE HIGH COURT OF JUSTICE

BETWEEN

LA VERNE LA GUERRE

Claimant

AND

KERN MEDINA

AMERICAN LIFE AND GENERAL INSURANCE COMPANY (Trinidad and Tobago) LIMITED

First Defendant



Second Defendant

********************************************* Before: Master Alexander

Appearances:

^{For the Claimant: Mr H.R.M. Seunath S.C.}

For the Second Defendant: Ms Reah Sookhai

REASONS Introduction

1. La Verne is the claimant in this matter. She was 22 years old on 3^rd January, 2009 when the vehicle she was in ran off the road and ended up upside down in a ravine in Debe becoming semi-submerged. La Verne claims that she was a front seat passenger in the said vehicle, with seat belt buckled on, and that she sustained severe injuries from this accident. She is seeking compensation for these injuries and losses by legal proceedings commenced on 25^th January, 2011. The second defendant, American Life General Insurance Company Limited (hereinafter “ALGICO”) filed a notice of admission of liability on 3^rd October, 2011. What is before this court is the issue of the quantum of damages to be awarded to La Verne.

2. From the outset, it is worth noting that La Verne’s injuries and consequent pain and suffering are not in dispute. These injuries have been detailed in the medical reports in evidence as: compression fracture of the body of the L2 vertebra with bone fragment displacement into the spinal canal; 4 fractured ribs; laceration of the forehead and over the left ear and seatbelt injury across the left shoulder down to the right hip. Whilst parties are ad idem with the injuries, the consequential effects on pecuniary prospects and resulting disability are challenged. For completeness, however, all aspects of losses suffered and evidence presented will be looked at below.

General damages

3. Two questions are generally borne in mind in assessing general damages namely: (a) what are the factors to be taken into account in deciding the quantum to award La Verne? (b) what discernible trends exist locally or alternatively in like regional jurisdictions or, further alternatively, elsewhere that may serve as a guide in making the assessment? The first question is informed by the principles set out in the hallmark decision of Cornilliac v St Louis¹ as explored below.

Nature and extent of the injuries sustained

4. It appears from the medical evidence that La Verne’s severe injuries are mainly to the back and chest areas. She has received also minor injuries of laceration to the forehead and over her left ear as well as bruising from shoulder to the hip. Several medical reports were supportive of these injuries including from Dr Anthony Ameeral dated 9^th February, 2009; Dr C Premdass dated 19^th February, 2009 and 19^th February, 2010; Dr Stephen Ramroop dated 4^th March, 2009 and Dr Krishna Maharaj dated 9^th September, 2010 and 16^th June,

2011. Dr Maharaj provided the most updated medical report and also gave viva voce evidence confirming these injuries. As stated above, ALGICO does not challenge the nature

and extent of injuries received.

¹ Cornilliac v St Louis (1965) 7 WIR 491

The nature and gravity of the resulting physical disability

5. La Verne claims that the damage to her back is permanent, leaving her with a physical disability. In issue is whether she has taken reasonable steps to mitigate or even perhaps alleviate the gravity of this physical disability. Dr Maharaj has given evidence under cross examination that La Verne requires surgical intervention/correction in the form of a lumbar laminectomy at the L1-L2 and L3 bilateral foraminotomies, as shown by the MRI findings, and spinal fixation with pedicle screws and rods at L1, L2 and L3. The estimated cost of this surgery is $75,000.00. He states that this will improve La Verne’s condition tremendously and that there is a 99% success rate of the surgery. La Verne acknowledges the option of surgery, both in her evidence in chief and under cross examination, but states, “I am terribly scared that if I have surgery done, I may become paralysed.” She has opted not to have the surgery and to live in the hope that her condition will improve. Is her refusal unreasonable and reflective of a failure to mitigate her losses? This will be discussed below under her claim for future loss of earnings.

Pain and suffering endured

6. As a rule, La Verne is entitled to recover damages for her physical pain and mental stress that can be linked to her injuries, both pre and post trial. A look at her witness statement proved a useful guide in assessing this aspect of her claim. She states that the accident happened around 4:30 a.m. on her way home and that when the car overturned in the ravine, at the side of the road, she endured mental distress. She states, “[T]he ravine was filled with water and as I was buckled in my seat with the seat belt, I became terribly afraid and felt as if I was going to die as I was upside down in the ravine.” She claims that someone pulled her from the car and put her on a tray of a pick-up truck and as this was being done, she felt excruciating pains in her lower back that grew worse as she was placed in the tray. She also felt pains in her head, neck, shoulder and chest. She had swallowed some of the dirty, ravine water and coughing to get it out was painful. Even to breathe normally was unbearably painful. She continued to get severe pains even after she was sent home from the hospital on the same day so she took Motrin, which did not ease the pains. The next day, she was taken to see Dr Sieunarine at Gulf View Medical Centre where she got painkillers but the pains persisted, especially in her chest and back. She remained in persistent pain on

painkillers until later in that week of the accident when she went to see Dr Ramroop. It was Dr Ramroop who, upon looking at the hospital x-rays and examining her, discovered she had broken ribs and an injury to the lower back.

7. La Verne gives evidence further that since the accident, she has not been able to sit or stand for long periods without sharp pains and numbness in the legs. Sitting in a low chair is challenging as she experiences great difficulty to get out of the chair so too is sitting in a car. Since the accident, she has not slept well at nights even on pain killers. She finds herself having continuously to be changing positions on the bed to ease her pain and discomfort. She states, “I also experience pain upon getting out of bed. I have to shift to the edge of the bed and then use my arms to help me out of bed.” She claims further that she even gets pain in her back when climbing up and down stairs.

8. She has had a course of physiotherapy but even this has not eased her pains and discomfort.

Since then she has been unable to return to work or do any kind of work that involves standing or sitting for extended periods. She now uses a spandex brace which allows her to function with less pain but she is still unable to do anything but light work.

9. The evidence as to her pain and suffering is clear and uncontroverted. It is clear that it took days for her broken ribs to be discovered and the requisite treatment administered. This must have been a source of intense and excruciating pain, as by her evidence even the self- administered pain killers did not give much of an ease. The subsequent diagnosis of the broken ribs and back injury, coming as it did days after visiting the hospital as well as a private doctor, must also have given her some mental distress. She states that at the San Fernando General Hospital, where she was taken after the accident, “they took x-rays and put surgical tapes over the cuts, cleaned the shoulder wounds and sent me home without medication. When I went home I was still in severe pain so I took Motrin to ease the pain. I was not able to sleep all night.” To be noted also is that she states, “[T]he cuts on my forehead have healed but pieces of glass still keep coming out of the healed spots.” This must undoubtedly put her to continuing mental and emotional disquiet, extending the distress that she has been made to endure from this accident. Given her evidence, I am

satisfied that La Verne endured intense and excruciating pains (both physical and mental) as a result of her injuries and that since then she has continued to suffer, though at a reduced intensity over time.

Loss of amenities suffered

10. The only evidence as to loss of amenities can be gleaned from her witness statement. She claims that before the accident, she played netball and volleyball; did running and swimming but now is unable to participate in any of these activities. She is also unable to perform the usual household chores of scrubbing floors or sweeping, as bending proves to be a challenge. She also cannot make sudden turns, without getting sharp pains in her back. Her injuries have clearly changed how she is now made to operate or function in the ordinary course of living her life. La Verne was 22 years old when the accident took place; it has changed her previously healthy lifestyle to one characterized by pain. It can safely be assumed that with this would come a certain measure of frustration and depression, as the joy of living would have been diminished.

Extent to which pecuniary prospects have been materially affected

11. This aspect of La Verne’s claim is highly contested and will be discussed in detail below

under the heading “loss of future earnings”.

Case Law Analysis

12. Counsel for La Verne recommended that she be awarded the sum of $350,000.00 for her pain and suffering and loss of amenities consequent upon the injuries sustained. He relied on 3 cases in particular, which he asked the court to use as a guide as follows:

• Moreau v Port Authority of Trinidad and Tobago² where for a spinal injury, where there was a pre-existing degenerative cervical and lumbar disc disease, a 47 year old man was awarded $200,000.00 in 2010.

• Pemberton v Hi-Lo Food Stores Ltd³ where the plaintiff suffered an injury to the

back as a result of a fall; she had pre-existing degenerative disc disease and had to wear

² HCA 3958 of 2006

an upper body cast for 5 months and was awarded in 1995 $85,000.00; updated to 2010 to $209,828.00.

• Dial v Ali⁴ where for spinal injuries resulting in permanent neck pains, particularly while at work, and which rendered the plaintiff unable to return to work, a plaintiff was awarded $17,000.00; updated to 2010 to $201,677.00.

13. In my view, La Verne’s injuries are more severe and extensive than those in the cases provided by her counsel, including 4 broken ribs. I also bear in mind there is evidence, on the present facts, of pre-existing degenerative condition suffered by her. Dr Premdass in medical report dated 19^th February 2012 stated, “early degenerative changes are noted in the L1-2 and L2-3 discs, evidenced by minimal height loss and loss of normal central high T2 signals of the nucleus pulposus.” Nevertheless, I formed the view that the compensatory award suggested by her counsel of $350,000.00 is too exorbitant and finds no justification on the present facts. La Verne’s injuries, pain and suffering and loss of amenities do not entitle her to unfair financial enhancement but to a just and appropriate award. I turn now to the guidance provided by counsel for ALGICO.

14. Counsel for ALGICO provided as a guide the following cases including:

• Persad & Capital Insurance v Peter Seepersad⁵ where a plaintiff suffered wedge compression fractures of the L1 and T2 vertebrae, which healed well without lasting effects and a prolapsed L5-S1 disc, which had been the major cause of his continuing pain and incapacity. He was hospitalized for 5 days after the accident with severe pain in the neck, thoracic and lumbar areas. He claimed that the cervical and lumbar pain made it impossible to do his job as a taxi driver and part time mechanic or to pursue other occupations as he could not sit for long periods or lift heavy items. There was medical evidence of a pre-existing degenerative condition of L5/S1 disc, which would

have deteriorated in the future even if the accident had not happened. There was also

³ HCA No 6039 of 1988

^{4 HCA 1709 of 1976}

⁵ HCA 76 of 1999/CA Nos. 136 & 137 of 2000/PC No 86 of 2002

evidence that he was exaggerating the restriction of neck movement. He was awarded

$75,000.00; as adjusted to December, 2010 to $129,578.00.

• Sohan v Hackett⁶ where a 35 year old plaintiff was thrown off a motor cycle onto his back and suffered with pains in his waist, left knee and left ankle; was hospitalized for 2 to 3 weeks unable to move; after discharge and up to assessment he had difficulty standing, driving a manual shift vehicle and with stair climbing. Sexual intercourse was also painful. He was awarded $20,000.00; as adjusted to December 2010 to $116,390.00. I am not satisfied as to the relevance of this case to the present facts and disregard counsel for ALGICO’s suggestion that it shows the possible high end of the range of awards that the court is likely to make in a case such as the instant one at bar. The injuries in Sohan are quite dissimilar to La Verne’s so this provides no useful guidance.

• Mohammed v Maharaj⁷ where a 30 year old plaintiff got a blow to the back from a

reversing vehicle and examination showed a fibro-muscular back strain with a localized area of tenderness. He was diagnosed with an unstable lumbo-sacral spine, a permanent condition with continuing back pains if he carried out any heavy physical activity. He could no longer play football, cricket or engage in Indian dancing. In his employment, he was restricted to the sorting room and advised to avoid walking up steep hills and heavy activity. He was awarded $14,000.00; as adjusted to December, 2010 to

$94,439.00. Here again, the injuries are not on par with the instant case and so it serves as little use to the current assessing exercise.

• Deyalsingh v the Mayor of Port of Spain⁸ where a 49 year old plaintiff who was a bar supervisor at the Trinidad Hilton Hotel suffered injuries including back pain, personality change and a compression fracture of the 12^th thoracic vertebrae. His condition was inoperable and there was no hope of it ever improving. He was awarded $25,000.00; as adjusted to December, 2010 to $232,102.00.

15. Counsel for ALGICO has submitted that the injuries suffered in Deyalsingh are more severe than those on the present facts, especially as they were inoperable. She suggested an

⁶ HCA 513 of 1978 per judgment of Maharaj M

^{7 HCA 1262 of 1977}

⁸ HCA 2341 of 1979

award of $100,000.00. To be noted is the fact that the cases provided by counsel for ALGICO were largely not squarely on par with or even closely reflective of the injuries sustained by La Verne as well as being quite dated. They, therefore, served only limited usefulness for comparative purposes. Whilst I accept that it is rare, if at all, that the facts in any 2 cases will be similar, I find the cases provided by counsel for La Verne to be more useful for the purpose of the instant exercise. After carefully reviewing all authorities provided, I concluded that La Verne’s injuries were severe (she was ascribed a permanent partial disability to her lumbar spine of 45% by Dr Krishna Maharaj). In my view, the award suggested by counsel for ALGICO is inappropriate and incapable of fairly compensating La Verne for the injuries she has sustained. It is in fact on the lower side of the compensatory scale. I do not accept, as counsel for ALGICO would like me to, that because there is the availability of surgery for an injury this is by itself sufficient evidence that the condition will be eradicated or even alleviated. Whilst I note the medical evidence of a high success rate of such surgeries, there is no guarantee that La Verne is excluded from the 1% failure rate. In fact, there is an inherent risk in surgical procedures of which one must be cognizant. In this assessing exercise, I also bore in mind all the evidence before me, particularly on the impact of this accident on La Verne’s life. I concluded that La Verne is entitled to an award that would fully compensate her for all present and future losses occasioned by the tort, without granting her an unjust windfall. For her pain and suffering and loss of amenities, I am minded to award the sum of $240,000.00.

Special Damages

16. It is not in dispute that, as required, La Verne has pleaded and particularized her claim for special damages as follows:

(i) Medical Attention - $6,500.00 (ii) Physiotherapy - $1,520.00 (iii) Transportation - $3,500.00 (iv) Loss of earnings @$3,000.00 from date

of accident 3/01/09 to date of assessment

Less amount paid by ALGICO - $33,204.59

It falls to this court, therefore, to examine the proof of her losses sustained. In so doing, I bear in mind the recent decision of the Court of Appeal in Ramnarine Singh et al v The Great Northern Insurance Company Limited⁹on the use of viva voce evidence.

• Medical Attention $6,500.00

17. Documentary proof, in the form of receipts, has been supplied for medical expenses so this claim is allowed.

• Physiotherapy $1,520.00

18. Evidence has been adduced in the form of receipts to substantiate this claim so it is allowed.

• Transportation $3,500.00

19. No evidence has been adduced, whether in the form of receipts or otherwise, to substantiate this claim of $3,500.00 in transportation cost. La Verne has given evidence in chief as to this expense which is accepted. In addition, it is an expense that would have been incurred and the sum is not unreasonable. It is allowed.

• Loss of earnings

20. Sick leave certificates for the period 17^th January, 2009 to August, 2009 were supplied to ALGICO. Counsel for ALGICO has submitted that based on this, La Verne will only be able to claim loss of earnings for the period of eight months amounting to $24,000.00 as she has failed to prove any additional loss of earnings.

21. Generally, a claim for loss of earnings is one capable of substantially exact calculation so a claimant is obligated to plead and particularize this head in fairness to the defendant. See Charmaine Bernard v Seebalack.¹⁰ This claim must be substantiated by the evidence. As

a rule, the degree of strictness of proof that is required depends on the particular

⁹ Ramnarine Singh et al v The Great Northern Insurance Company Limited and Johnson Ansola Civil Appeal No 169 of

^{2008 and The Great Northern Insurance Company Limited et al v Ramnarine Singh et al Civil Appeal No 121 of 2008}

¹⁰ Charmaine Bernard v Seebalack, PC No 0033 of 2009 @ page 7

circumstances of each case¹¹. See Gunness and anor v Lalbeharry¹²as well as Harrinanan v Parriag and others¹³. To be noted also is that in actions for personal injuries, special damages are recoverable including loss of earnings incurred down to the date of trial.

22. La Verne gave evidence that she is the holder of a BA degree in Business Management from Anglia University in the United Kingdom; did a course in Project Management as well as in Microsoft Project 2007 both at Border Com. International. She has exhibited copies of her certificates. She was also in the process of making arrangements to pursue her Master’s degree in Project Management or Business Administration when the accident happened. At the time of the accident, she had recently started working with Safe Holdings and Trust Limited in October 2008 and was earning a salary of $3,000.00 per month, during her 3 month probationary period carded to end in December, 2008. From January, 2009, her salary would have increased to $4,500.00 per month but because of the accident she was not able to resume work. She purports further to give evidence of earning an increased pay, provided certain conditions required by her employers were fulfilled. To be noted here is the dearth of documentary evidence with respect to these claims, particularly a job letter or documents from the employer supporting this claim.

23. La Verne’s evidence in chief is that since the accident, she has not been able to return to her previous employment and has sought and obtained temporary relief employment, usually for a 2 week period at a time on 2 occasions earning $1,500.00 each time. It is accepted, based on the learning, that an injured party is entitled to loss of earnings from the date of the accident to the date of assessment after a 25% discounting for holidays, sickness and other vagaries of life in accordance with the Peter Seepersad principles.

24. I am not satisfied; however, that she is entitled to 100% loss of earnings as it is in evidence that she is able to earn income. I note further that she was assessed with a permanent partial disability of 45% only to the lumbar spine not her whole body, which clearly points to partial

incapacity (not total). Further, it is to be noted that La Verne has supplied absolutely no

¹¹ Ratcliffe v Evans (1892) 2 QB 524, 532-533 per Bowen LJ

^{12 Gunness and anor v Lalbeharry Civil Appeal 41 of 1980}

documentary proof of her employment, salary and/or any likely increases. There was no job letter, no pay slip, no bank record, no witness statement filed for an employer attesting to her claim that she was employed at the time of the accident or of her earnings. To my mind, the absence of evidence in support of a claimant’s viva voce evidence of special damage is not necessarily conclusive against her.

25. Given that no rebuttal evidence was called on loss of earnings, I was slow to reject her evidence without some more compelling reasons. Of note was the Court of Appeal decision in Great Northern Insurance Company and Ors v Ansola¹⁴ which sounded the caution that, “the absence of evidence to support a plaintiff’s viva voce evidence of special damage is not necessarily conclusive against him. ... [but] a factor to be considered ... he can support the plaintiff’s claim on the basis of viva voce evidence only. This is particularly so where the evidence is unchallenged and which, but for supporting evidence, the Judge was prepared to accept. Indeed in such cases, the Court should be slow to reject the unchallenged evidence simply and only on the basis of the absence of supporting evidence. There should be some other cogent reason.” [emphasis mine]

26. In the circumstances, I note La Verne’s evidence as to the challenges of working given her pains but also the medical evidence that did not exclude her from working. In fact, there is no medical pronouncing her medically unfit to work permanently. Dr Ramroop in his report dated 4^th March, 2009 stated that whilst she can work, she will be affected by pain and disability. Noting her stated inability to perform her activities, Dr Ramroop stated that there is no medical reason to confirm that she is likely to suffer injury, harm and further medical impairment by engaging in the usual activities of living or other activities to meet occupational or social demands. He recommended, however, the use of assistive devices to meet occupational demands or perform her usual daily activities. Dr Ramroop’s assessment was done 2 months after the accident. The most updated medical report on her condition issued by the hand of Dr Maharaj on 16^th June, 2011 also confirmed her ability to do light office work, with adequate pain management medication. To be noted, however, is that it

was not recommended in this latest medical that she return to her pre-accident working life,

¹⁴ Great Northern Insurance Company v Ansola CACiv 169/2008 at page 32, paragraph 97

indicating there was a remaining challenge. Under cross examination Dr Maharaj confirmed that she was able to do light office work, with the proper assistive devices.

27. I have had the benefit of seeing and hearing La Verne give evidence and I am satisfied that she was a witness of truth. Her evidence was clear and cogent and there was no attempt to mislead this court, despite the lack of corroborating evidence of this claim. Given that La Verne has not proved she was totally incapacitated and/or her actual earning power has been completely eroded as a result of her injuries, I am thus prepared to apply the Nerahoo principles and reduce this claim by 35% (taking into account the 25% for the vagaries of life) bearing in mind her continuing disability, albeit the refusal of surgery is by choice as she is entitled to do.

28. The calculation of her loss of earnings is reflected below:

29. Given the above, the total sum of special damages due to La Verne is $87,570.00. To be noted is the fact that ALGICO has paid $33,204.59 in medical expenses which must be deducted from this award. She is allowed $54,365.41 as special damages.

Loss of Future Earnings

30. LaVerne claims that her pecuniary prospects have been affected as a result of her injuries.

She states that since the accident, she has only been able to get temporary employment on 2 occasions with Jaimet Construction Services Limited (hereinafter “Jaimet “) as a clerical assistant, as a relief person. However, given her medical condition, she was allowed to work at her own pace and to take frequent breaks to rest her back. On each occasion, she was paid $1,500.00 for the 2 week period. No other evidence was presented to confirm these claims of occasional relief employment with Jaimet or special conditions under which she

was allowed to work. I am required to extrapolate from the medical evidence that La Verne would not be able to function in an office environment or to perform clerical functions for which she is qualified or even in a managerial position, except on a limited basis.

31. Generally, this head of damage is applicable where the nature of the injury will impair earning capacity for a number of years or for the rest of the claimant’s life. These damages are subject to the same deductions as are loss of pre-trial earnings but because they represent future earnings, the quantum is capitalized and awarded as a lump sum. It is required of a claiming party by an assessing court that the requisite medicals and medical evidence on cross examination buttress the claim for loss of pecuniary prospects. It is insufficient merely to have the uncorroborated evidence of a claimant that she cannot work since the accident. I bear in mind that it does not necessarily follow that because an injured party suffers serious injuries she is to be awarded damages for suffering financial loss, since this risk may or may not arise in consequence of the accident.

32. Hamel-Smith JA in Parahoo v S.M. Jaleel Company Limited¹⁵ states that a party who claims loss of pecuniary prospects must show that the injury was of such a nature that it rendered him incapable of performing his pre-accident job or any other form of work whatsoever. Where he is rendered incapable of performing the prior job but it did not prevent him doing other work, it was necessary to show that in order to mitigate his loss. To discharge this onus what is required is medical evidence as to the nature of the injuries and the residual effects it may have on the claiming party’s ability to work. Rampersad J in Wesley Gabriel v Royal Bank of Trinidad and Tobago Limited¹⁶ applied the Parahoo principle and concluded, “This court feels that it was incumbent upon the Claimant, who was pursuing a claim for loss of pecuniary prospect and loss of future earnings, to have had comprehensive medical reports justifying a finding such as that which he wishes this court to reach, namely, that his future pecuniary prospects and future earnings would be severely affected. Unfortunately, the evidence was not made available to assist this court.” [emphasis

mine]

¹⁵ CA Civ 110 of 2001

¹⁶ CV2008-04072

33. On the present facts, La Verne has not been able to adduce medical evidence that she would not be able to work for the rest of her life. The medical evidence is clear that she can return to “light office” work, with the assistance of pain medication and/or other aids. I, therefore, accept the evidence of her injuries having materially affected her pecuniary prospects, but there is an insufficiency of evidence before me to rule conclusively that she is 100% unfit for any type of employment. The medical evidence points to La Verne being capable of doing light office duties, given her injuries. It means that she now faces a challenge with being competitive on the job market. Counsel for ALGICO has raised the issue of her refusal to have surgery, which can likely improve her chances of having her symptoms eroded or, at the very least, alleviated and has asked this court to hold that her decision is unreasonable, given the medical evidence of a 99% success rate of the surgery. Counsel submitted further that an injured personal has a duty to minimize the consequences of the injury, even if the injury is through no fault of that person. The court was asked to consider as unreasonable La Verne’s failure to mitigate by having the surgery to improve her condition and hold that ALGICO should not be responsible for pecuniary loss and future loss of earnings. She should be denied recovery of that part of her damages, as it could reasonably have been avoided or alternatively, if the court is minded to make an award, it should be $27,000.00.

34. I am satisfied on the medical evidence presented that there is no evidence that La Verne is unable to work for the rest of her life or will suffer sudden incapacitation. In fact, Dr Maharaj on his recent review of La Verne in 2011 reported that there was no deterioration of her neurological condition. Is her refusal to have the surgery unreasonable and suffice as to exclude her completely from recovery of future loss of earnings?

35. In principle, a claimant can recover compensation for all losses actually sustained from a torturously inflicted injury. Loss of income consequent on losing one’s job is recoverable but will be reduced by any amount earned from alternative employment. A claimant is also required to undergo ‘reasonable’ medical treatment made necessary by her injuries, if it is likely to improve her employment chances or decrease her losses. See McAuley v London

Transport Executive¹⁷. See also Morgan v T. Wallis¹⁸. On the other hand, an injured person may be debarred from recovering damages for the consequences of an injury that could have been avoided or significantly lessened by surgery or other treatment. Hence, one cannot recover damages for a permanent injury if the permanency of the injury could have been avoided by submitting to surgery or other treatment, when a reasonable person would have done so under the same circumstances. The question of what is reasonable will depend on the circumstances of each case.

36. On the instant facts and medical evidence, there appears to be a high rate of success of the surgery. To be noted, however, is that there is always a risk in undertaking surgery. The only medical evidence available was that of Dr Maharaj, none was provided by ALGICO and whilst Dr Ramroop also recommended surgery he did not assess the risk factor. To my mind, the decision to have surgery is always a serious one. There can be no guarantee, even in the case of 1% failure rate, that an injured person would not be caught in that minor band. A court, therefore, should be slow to deem refusal unreasonable. See Geest plc v Lansiquot¹⁹.

37. In La Verne’s case, it appears that the surgery is necessary to achieve significant improvement in her condition but her evidence is she fears paralysis will result from it. Surgery to the spine (even with a high success rate) is not routine surgery. Whilst I accept the high success rate of such surgeries, I note that there is always a percentage of patients who do not benefit from surgery (minor or risky). Further, I note that under cross examination, Dr Maharaj’s evidence is that surgery will reduce her permanent partial disability by 30%, leaving her with a residual disability of the lumbar spine of 15%. He made it clear that she could do light duties, like typing but will need freedom to get up every 2 hours and that her condition may improve over the next few years and in fact, she appears minimally better. Further, there was no medical evidence presented of the likelihood of paralysis or not and I am unable to conclude one way or the other on this fear of La Verne’s.

Without more comprehensive medical evidence, I am unwilling to accept and hold as

¹⁷ (1957) 2 Lloyd’s Report 500

^{18 (1974) 1 Lloyd’s Report 165}

¹⁹ (2002) 61 WIR 212

counsel for ALGICO would like me to that given her age and the youth’s body to naturally heal itself, the surgical risk involved will be reduced. I have no medical evidence that speaks to this or guarantees such outcome. Without definite guarantees, La Verne has refused to have the surgery and I am not prepared to hold her decision as unreasonable. In the circumstances, I am prepared to look at the evidence advanced with a view to making this award.

38. She has given evidence of the likely pattern of her future earnings but unfortunately, the evidence presented is not very compelling subject as it is to a number of uncertainties and imponderables. I note in particular that La Verne had just embarked on her career and was expectant that her salary range would keep evolving given her qualifications and continuing higher educational pursuits. She claims also that once certain conditions existed her employer would likely have increased her salary to a range of $8,000.00-$10,000.00. I was constrained without more not to accept this evidence. What I am convinced of on the basis of the medical evidence is that La Verne can perform light office duties, with assistive devices and medication. There is no evidence that she has been deemed medically unfit to work permanently or temporarily. To my mind also, her functional ability on the labour market has been reduced by her injuries. By extension, I can accept that she has lost the competitive edge, which she would have naturally by her qualification and age and for this she must be compensated. La Verne has been disabled for heavy work, as confirmed by the medical evidence of Dr Maharaj, and I accept that finding light work may pose a challenge. In arriving at an award I, therefore, must take account of the possibility that she might be unable to get any suitable “light office” work on any permanent basis. Thus, whilst she may be able to work and earn a living, she may be faced with a substantial shortfall in comparison with her earnings had she not been involved in this accident and sustained these injuries. Further, she has not lost all her earning capacity so cannot be compensated on the basis of total loss. See Public Transport Service Corporation v Nerahoo Sookhoo.²⁰ However, I am unable to determine the extent of this loss on the evidence before me. There is clear

uncertainty as to what she would have earned over the course of her working life if she had

²⁰ Public Transport Service Corporation v Nerahoo Sookhoo Civ App No 21 of 1993

not been injured. Given the evidentiary difficulties, I did not apply the conventional approach but find it an appropriate case for the Blamire award. I find a lump sum award of

$100,000.00 would suffice to compensate her for this loss.

Order

39. It is ordered that the defendants do pay to the claimant the following:

1. General damages in the sum of $240,000.00 with interest at the rate of 9% per annum from 22^nd February, 2011 to 14^th December, 2012;
2. Special damages in the sum of $54,365.41 with interest at the rate of 6% per annum from 3^rd January, 2009 to 14^th December, 2012;

iii. Loss of future earnings in the lump sum of $100,000.00;

iv. Costs of the assessment in the sum of $39,700.81. Dated 14^th December, 2012

^{Martha Alexander}

Master

Context